B-157155, JUL. 19, 1965

B-157155, JUL. 19, 1965

TO UNIVERSAL CARLOADING AND DISTRIBUTING CO., INC.:

WITH YOUR LETTER OF MAY 20, 1965, FILE NGO-3497-C, YOU ENCLOSED A COPY OF YOUR LETTER OF DECEMBER 3, 1964, IN WHICH YOU REFERRED TO YOUR LETTER OF SEPTEMBER 5, 1963. IN YOUR LETTERS YOU CLAIM REFUND OF $5,267.14 RECOVERED BY ADMINISTRATIVE DEDUCTION TO COVER A SHORTAGE OF 1 BOX OF 20 PRESSURE REGULATORS OR PRESSURE VALVES, WEIGHING 156 POUNDS, UNDER SHIPPING TICKET NO. 3067-2015-8306. THIS ITEM IS SHOWN IN THE LIST ON THE CONTINUATION SHEET, PAGE 2, TO GOVERNMENT BILL OF LADING NO. B-2629633 DATED JANUARY 23, 1962, AS 1 OF 14 PACKAGES DELIVERED TO AND ACCEPTED BY UNIVERSAL CARLOADING AND DISTRIBUTING CO., INC., FOR MOVEMENT FROM MATHER AIR FORCE BASE, CALIFORNIA, TO TINKER AIR FORCE BASE, OKLAHOMA. YOUR AGENT SIGNED THE RECEIPT ON THE BILL OF LADING ACCEPTING THE 14 PIECES DESCRIBED THEREON IN APPARENT GOOD ORDER AND CONDITION. ONLY 13 PIECES WERE DELIVERED AT DESTINATION ON FEBRUARY 1, 1962, AND AT THE TIME OF UNLOADING, THE SHORTAGE WAS NOTED AND WAS ACKNOWLEDGED BY YOUR AGENT, MR. H. E. MCINTIRE.

A SECOND SHIPMENT CONSISTING OF 13 PIECES, WEIGHING 710 POUNDS, WAS RELEASED TO YOU AT MATHER AFB ON JANUARY 30, 1962, FOR DELIVERY TO TINKER AFB UNDER GOVERNMENT BILL OF LADING B-2629642, BUT ONLY 11 OF THE 13 PIECES WERE DELIVERED ON FEBRUARY 8, 1962. CONSEQUENTLY, A SHORTAGE OF 2 PIECES EXISTED IN THE SECOND MOVEMENT.

ON FEBRUARY 9, 1962, 1 PIECE, SHIPPING TICKET NO. 3067-20268707, WEIGHT 59 POUNDS, WAS DELIVERED AT TINKER AFB AND WAS ERRONEOUSLY APPLIED TO THE SHORTAGE ON GBL B-2629633. AFTER PROCESSING THIS MATERIAL FOR STORAGE, HOWEVER, IT WAS FOUND THAT THE BOX CONTAINED ONE RECEIVER, STOCK NO. 1280- 644-2573, AND THE SHIPPING TICKET NUMBER CORRESPONDED WITH THAT SHOWN FOR ITEM 3, PAGE 2, ON GBL B-2629642. THE FINAL PIECE OF THE SHIPMENT UNDER GBL B-2629642 WAS DELIVERED ON MARCH 12, 1962, AND THAT GBL WAS THEN ACCOMPLISHED CLEAR OF EXCEPTION AND SURRENDERED TO YOU.

IT APPEARS TO BE YOUR CONTENTION, HOWEVER, THAT THE SHORTAGE, IF ANY, OCCURRED IN THE SHIPMENT COVERED BY GBL B-2629642 RATHER THAN IN THE SHIPMENT COVERED BY GBL B-2629633. YOU ALLEGE THAT YOUR DOCUMENTS AND THE TESTIMONY OF YOUR "ORIGIN TRUCKMAN" INDICATE THAT THE PIECE WHICH WAS DELIVERED ON FEBRUARY 9 APPLIED TO GBL B-2629633. YOU ALSO SUGGEST THAT ALL ITEMS RECEIVED BY YOU FOR TRANSPORTATION WERE DELIVERED BY YOU AT DESTINATION, AND THAT THE ITEM SHORT WAS NOT IN FACT SHIPPED, BUT WILL BE BOUND IN STOCK AT ORIGIN OR AT DESTINATION.

THE ITEM DELIVERED ON FEBRUARY 9 BY WEIGHT, 59 POUNDS, COMMODITY, AND TICKET NUMBER, WAS CLEARLY IDENTIFIED AS ITEM 3 ON THE CONTINUATION SHEET, PAGE 2, TO GBL B-2629642. A REPORT FROM MATHER AFB DATED FEBRUARY 14, 1962, STATES: "A CHECK OF RECORDS AND LOADING AREAS INDICATE SHIPMENT WAS FORWARDED AS BILLED ON GOVERNMENT BILL OF LADING B-2629633.' A REPORT FROM TINKER AFB DATED FEBRUARY 21, 1963, STATES: "STOCK RECORDS, WAREHOUSE LOCATIONS AND ASTRAY FREIGHT RECORDS HAVE BEEN CHECKED NUMEROUS TIMES FOR 20 EACH 1660-526-6408 REGULATORS FROM MATHER AFB ON REQUISITION OB3067- 20158306. NO RECORD OF RECEIPT OF PROPERTY CAN BE FOUND ON THIS BASE.'

UPON DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE GENERAL RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE OFFICERS IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. SEE 40 COMP. GEN. 180; 37 ID. 797, 798; 36 ID. 529, 530; 31 ID. 288, 289; AND 16 ID. 325. NO SUCH EVIDENCE HAS BEEN PRESENTED BY YOU IN THIS CASE.

YOU HAVE ALSO SUGGESTED THAT THE BURDEN OF EVIDENCE IS ON THE GOVERNMENT. THE RULE HAS BEEN WELL ESTABLISHED, HOWEVER, THAT IT IS NOT THE DUTY OF THE GENERAL ACCOUNTING OFFICE TO REFUTE CLAIMS PRESENTED TO IT FOR SETTLEMENT, OR THE ALLEGATIONS ON WHICH SUCH CLAIMS ARE BASED, BUT RATHER IT IS FOR THE CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. SEE UNITED STATES V. NEW YORK, N.H. AND R., 355 U.S. 253; CHARLES V. UNITED STATES, 19 CT.CL. 316; AND LONGWILL V. UNITED STATES, 17 CT.CL. 288.

ACCORDINGLY, OUR DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.

IN YOUR LETTER OF DECEMBER 3, 1964, YOU SUGGEST THAT THIS CASE IS AN APPROPRIATE ONE FOR A COMPROMISE SETTLEMENT. WHILE THE JURISDICTION OF OUR OFFICE EXTENDS TO THE SETTLEMENT OF CLAIMS IN WHICH THE UNITED STATES IS CONCERNED EITHER AS A DEBTOR OR CREDITOR, WE ARE NOT AUTHORIZED TO ACCEPT LESS THAN THE FULL AMOUNT DUE THE UNITED STATES. IF, HOWEVER, YOU DESIRE TO MAKE AN OFFER TO PAY LESS THAN THE AMOUNT DETERMINED BY OUR OFFICE TO BE DUE IN COMPROMISE OF THE GOVERNMENT'S CLAIM, YOU MAY FORWARD TO US AN OFFER IN A DEFINITE AMOUNT TOGETHER WITH YOUR VIEWS AS TO WHY ACCEPTANCE OF SUCH OFFER WOULD BE PROPER. UPON RECEIPT OF SUCH OFFER THE MATTER WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE (WHICH UNDER 31 U.S.C. 194 AND EXECUTIVE ORDER 6166 OF JUNE 10, 1933, HAS CERTAIN AUTHORITY TO COMPROMISE GOVERNMENT CLAIMS) TOGETHER WITH A COPY OF THE RECORD AND A REPORT OF THE FACTS FOR CONSIDERATION UNDER ITS COMPROMISE JURISDICTION AND YOU WILL BE ADVISED OF ..END :